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City leaders dispute Texas' open meetings law

HOUSTON — The Texas Open Meetings Act stifles free speech rights and leaves officials open to criminal penalties for mentioning government business in informal settings, an attorney for 15 city leaders challenging the law told an appeals court Thursday.

An attorney for the Attorney General’s Office countered that the act ensures the public is informed about how government operates.

The 1967 Texas Open Meetings Act prohibits a quorum of members of a governmental body from deliberating in secret. Violations are punishable by up to six months in jail and a $500 fine.

Fifteen officials from cities including Alpine, Arlington and the Houston suburb of Sugar Land sued the state in 2009, saying the portion of the act that imposes criminal penalties is unconstitutional because it violates their First Amendment right to free speech.

Last year, a West Texas federal judge ruled against them, saying the law protects “the compelling interest of governmental transparency.”

The city officials appealed.

Their attorney, Craig Enoch, told the three-judge panel in Houston of the 5th U.S. Circuit Court of Appeals that his clients support open government but worry that the law criminalizes behavior such as simply talking to a colleague about a matter on a city council agenda.

“The issue is ... when you have criminal sanctions, you have the grave arm of censorship,” he said.

Enoch said other remedies, including open records laws, ensure transparency without the need for self-censorship.

Sean Jordan, deputy solicitor general for Texas, said the law doesn’t prevent anyone from speaking or altering their message.

“These laws are designed to ensure government officials don’t get into a practice of deliberating in private,” he said.

An attorney representing government officials and news organizations that support the law said the lawsuit aimed to protect secret, not free speech.

“This is not a no-speech case,” Smith said. “I know you like to frame it that way, makes it sound more onerous.”

The appeals court was to rule at a later date.

The legal challenge dates back to a separate lawsuit filed in 2005 by two former city council members in Alpine who challenged the penalties the act imposes for violations. One of them, Avinash Rangra, had been indicted in February 2005, accused of sending emails to a council quorum that involved official government business. The charge was later dropped.

In September 2009, the 5th Circuit dismissed the lawsuit, ruling the case was moot because the two council members in the West Texas city had left office.

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